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Cruthird v. Keefe Commissary Network, LLC

United States District Court, D. Massachusetts

December 3, 2015

DWAYNE M. CRUTHIRD, Plaintiff,
v.
KEEFE COMMISSARY NETWORK, LLC, et al., Defendants.

MEMORANDUM AND ORDER

Denise J. Casper United States District Judge

I. Introduction

Dwayne M. Cruthird brings this action against Keefe Commissary Network, LLC and Access Corrections (“Defendants”) alleging that they violated state consumer protection law in conjunction with his purchase of digital copies of certain songs. For the reasons set forth below, the Court dismisses this action without prejudice.

II. Background

Dwayne Cruthird (“Cruthird”) is a state inmate who, at the relevant time, was confined at MCI Concord. He alleges that he bought digital copies of certain songs from the Defendants. Inmates are not able to listen to a song clip before purchasing the songs. Cruthird made purchases based on the titles of songs, only to discover after the purchase that they were not the songs he wanted. The defendants refused to refund him his money or give him credit.

In his original complaint (D. 1), Cruthird sought damages in the amount of $11.00 and an order that the defendants provide access to sound clips of songs prior to him making a purchase decision. On August 11, 2015, the Court issued a Memorandum and Order, D. 11, directing the plaintiff to show cause why the action should not be dismissed for lack of subject matter jurisdiction. The Court explained that Cruthird had not brought a claim arising under federal law and that his claim did not meet the $75, 000 amount in controversy requirement for diversity subject matter jurisdiction. See 28 U.S.C. § 1331, 1332(a).

Cruthird timely filed a show cause response, D. 14, and an amended complaint, D. 15. In both pleadings, Cruthird states that he is bringing a class action and that the aggregate amount in controversy for all of the class members exceeds $75, 000. He estimates that the aggregate damages could be as high as $1, 200, 000 for Massachusetts class members and $42 million for a nationwide class of over 150, 000. Cruthird bases his calculation on the estimated amount of money that the potential class members have spent on purchasing songs without first listening to a sound clip, which, he claims, is a violation of Massachusetts consumer protection law. Cruthird also states that the Defendants’ conduct violated the rights of the class members under the Digital Millennium Copyright Act and “exclusive rights for fair usage.” Amend. Compl. (D. 15 ¶ 32-33).

III. Discussion

Cruthird’s show cause response and amended complaint do not cure the jurisdictional deficiencies to the extent that the plaintiff invokes this Court’s jurisdiction under 28 U.S.C. §§ 1331 or 1332(a). To the extent he is invoking the Court’s jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), Cruthird, who is not represented by counsel, cannot bring this action.

A. Federal Question Jurisdiction Under 28 U.S.C. § 1331

Cruthird does not cite to, nor can the Court find, any provision in the Digital Millennium Copyright Act that requires a music distributor to provide a song sample to customers prior to purchase of an electronic download. Rather, the statute focuses on protecting the rights of copyright owners who face a “vastly expanded risk of piracy in this electronic age.” Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 329 (S.D.N.Y. 2000). Further, as the Court stated in its earlier Memorandum and Order, the “fair use” provision of copyright law does not give rise to a cognizable claim. In the context of copyright law, the “fair use” doctrine is a defense to a claim of copyright infringement. See 17 U.S.C. § 107.

B. Diversity Subject Matter Jurisdiction Under 28 U.S.C. § 1332(a)

Cruthird attempts to invoke the Court’s diversity subject matter jurisdiction under 28 U.S.C. § 1332(a) by aggregating the amount in controversy of the claims of the individual class members. However, diversity subject matter jurisdiction under 28 U.S.C. § 1332(a) only exists if the amount in controversy for at least one of the plaintiffs exceeds $75, 000. Cruthird and the other class members cannot aggregate the amount in controversy of their individually cognizable claims to meet the amount in controversy requirement. See CE Design LTD v. Amer. Economy Insur. Co., 755 F.3d 39, 43 (1st Cir. 2014). Because Cruthird has not alleged facts from which the Court may reasonably infer ...


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